Articles Posted in Harassment

Musical notesFederal law prohibits discrimination by employers on the basis of numerous factors. Common examples of unlawful discrimination include refusal to hire, termination, or harassment in the workplace because of a claimant’s race, sex, religion, etc. The Third Circuit Court of Appeals, whose jurisdiction includes New Jersey employment discrimination claims under federal law, recently ruled on the question of how much harassment a plaintiff must allege to maintain a claim for workplace harassment based on race. The defendant argued that a plaintiff must allege an ongoing pattern or multiple instances of harassment. The court, citing the plain language of precedent decisions, held that a single incident of race-based harassment can be sufficient to sustain a claim. Castleberry v. STI Group, No. 16-3131, slip op. (3rd Cir., Jul. 14, 2017).

Title VII of the Civil Rights Act of 1964 is probably the most well-known federal statute dealing with race discrimination in employment, but it is not the only one. The plaintiffs in Castleberry brought their claims under 42 U.S.C. § 1981 rather than Title VII. This statute addresses equal rights “to make and enforce contracts” and engage in certain other activities. It was originally enacted as part of the Civil Rights Act of 1866, and Congress amended it in the Civil Rights Act of 1991. This law added subsection (b), which clarifies that the contractual rights it protects include employment claims like wrongful termination.

The Castleberry lawsuit alleges workplace harassment on the basis of race in the form of a hostile work environment. The Third Circuit has defined a five-part test for establishing a hostile work environment based on race:  the plaintiff experienced (1) intentional discrimination based on race (2) that was “severe or pervasive,” (3) that “detrimentally affected the plaintiff,” (4) that would have a comparable effect on “a reasonable person” in a similar situation, and (5) that occurred in a situation in which respondeat superior liability would apply. Castleberry, slip op. at 5, quoting Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013). The Third Circuit’s analysis in Castleberry focused on the “severe or pervasive” element.

Lower Manhattan AerialFederal and state employment statutes protect employees from discrimination on the basis of sex and other protected traits, and they also prohibit retaliation for reporting alleged violations of these laws. Protections against retaliation also extend to workers who act as “whistleblowers” by reporting suspected financial crimes. A lawsuit in New York City combines allegations of sex discrimination with whistleblower retaliation claims under two major financial laws. The plaintiff’s complaint describes an alleged culture of unequal treatment based on gender, including unequal pay and job responsibilities. She further alleges that a supervisor harassed her to obtain information to use in insider trading, and the defendant terminated her in retaliation for reporting the matter. The lawsuit asserts causes of action under state and federal anti-discrimination laws and federal financial statutes.

The plaintiff asserts sex discrimination, harassment, and retaliation claims under a New York state law, which is similar to the New Jersey Law Against Discrimination. N.J. Rev. Stat. § 10:5-12(a). She is also alleging gender-based pay discrimination under the Equal Pay Act of 1963, 29 U.S.C. § 206(d). She has reportedly filed a claim with the Equal Employment Opportunity Commission, and she will add claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), once the administrative process is complete.

The plaintiff is also claiming violations of the whistleblower protection provisions in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, 15 U.S.C. § 78u- 6(h)(1); and the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1514A. Employers that are subject to these laws cannot terminate or otherwise retaliate against an employee for reporting alleged financial fraud or impropriety, for participating in an investigation of alleged financial impropriety, or for disclosing information to a government agency in the manner required by law. Both statutes allow private causes of action by aggrieved employees.

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The field of employment law extends beyond claims under statutes like the Fair Labor Standards Act or the New Jersey Wage and Hour Law. Employment law includes almost any legal issue involving an employer-employee relationship or almost any similar relationship. A pair of lawsuits between a pop singer and her producer demonstrate how “employment law” can encompass a wide range of issues. No express employer-employee relationship exists in the cases, but the singer’s lawsuit alleges that the producer has made it essentially impossible for her to work. The producer responded by filing his own lawsuit, alleging breach of contract and other claims.Screen Shot 2014-11-03 at 11.21.35 AM

The singer, who uses the stage name “Kesha” and previously used the name “Ke$ha,” has built a rather extensive body of work as a singer, songwriter, and performer. She released her first full-length album in 2010, but her career has been less active in recent years. She attributes that apparent slowdown in her career to a conflict with her producer, who does business under the name “Dr. Luke.”

In her complaint, Kesha states that she first signed a contract with Dr. Luke in 2005, when she was 18 years old. She alleges that he “has sexually, physically, verbally, and emotionally abused” her for the past decade, “to the point where [she] nearly lost her life.” Sebert v. Gottwald, et al., 1st am. complaint at 2 (Cal. Super. Ct., L.A. Co., Jun. 8, 2015). The allegations include “sexual advances” and “forc[ing her] to take drugs and alcohol in order to take advantage of her sexually while she was intoxicated.” Id. at 7. The “abuse and control” allegedly continued after she got her “big break” in 2010. Id. at 8. She also alleges numerous acts by the producer that have hindered her career in recent years, such as by preventing her from releasing albums or touring.

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food-284418_640.jpgA former program manager for the internet company Facebook has filed a lawsuit against the company in state court in California, alleging sexual harassment and discrimination based on race and gender. Hong v. Facebook, Inc., et al, No. CIV-532943, complaint (Cal. Super. Ct., San Mateo Co., Mar. 16, 2015). The case alleges numerous acts of conduct towards the plaintiff that, when taken in isolation, might seem minor, but that add up over time to constitute significant disparate treatment based on her gender and her national origin. The laws at the state and federal level are clear that employers may not discriminate in promotions, job duties, and other features of employment based on these categories. These types of claims, unfortunately, can be difficult to prove. Another recent lawsuit against a Silicon Valley venture capital firm made similar allegations but resulted in a jury verdict for the defendant. The current case makes a wide range of allegations, however, that indicate overtly discriminatory treatment towards the plaintiff.

According to her complaint, the defendant hired the plaintiff in June 2010 for the position of program manager. It transferred her to “technology partner” in October 2012. She claims that she performed her job duties well throughout her time with the company, pointing to “satisfactory performance evaluations” and regular raises as evidence. Hong, complaint at 2. Prior to the events immediately preceding her termination, she states that she “received no significant criticism of her work.” Id. She was allegedly terminated on October 17, 2013.

The plaintiff alleges that multiple employees of the defendant, including her supervisor, who is named individually as a defendant, and others identified in the complaint as “Does One through Thirty,” discriminated against her based on gender. This allegedly included comments belittling her work and admonishment for “exercis[ing] her right under company policy to take time off to visit her child at school.” Id. at 3. She also claims that she was given assignments that no male co-workers were expected to do, such as organizing office parties and serving drinks. She makes a direct allegation that the company hired a “less qualified, less experienced male” to replace her. Id.
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Gender-Symbol_Transgender_M2F_Lesbian.pngA transgender woman’s sex discrimination lawsuit examined the extent of protection, if any, offered for gender identity by federal anti-discrimination law. Jamal v. Saks & Company, No. 4:14-cv-02782, complaint (S.D. Tex., Sep. 30, 2014). Issues relating to transgender persons, generally defined as someone who identifies with a different gender than the one they were assigned at birth, have gained considerable prominence in recent years, particularly with regard to their rights against workplace and public discrimination. New Jersey and other states prohibit employment discrimination based on “gender identity or expression” N.J. Rev. Stat. § 10:5-12(a), but federal anti-discrimination laws do not expressly mention gender identity.

The defendant operates the Saks Fifth Avenue chain of department stores. The plaintiff, a transgender woman, first worked at an outlet store in suburban Houston, Texas until she was transferred to its “full-line store” in Houston. Jamal, complaint at 3. She alleges that the defendant routinely “misgendered” her by referring to her with male pronouns and other indicators, and denying permission to use the women’s restroom. The store manager allegedly requested that she “change her appearance to a more masculine one.” Id. at 5. Managers and fellow employees, the plaintiff claims, routinely harassed and belittled her on the basis of her gender identity. She complained to the EEOC, and was fired ten days later.

The plaintiff sued for wrongful termination, hostile work environment, harassment, and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. The defendant filed a Rule 12(b)(6) motion to dismiss in December 2014 that referred to the plaintiff as “he,” and used the term “[sic]” when quoting portions of the plaintiff’s complaint that used female pronouns. This term is used to indicate that quoted text includes errors or inaccuracies found in the original. The defendant later withdrew its motion, and the parties stipulated a dismissal of the lawsuit in March 2015. The questions it raised still remain, though.
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Indian_Passport.jpgThe federal government settled a massive visa and immigration fraud claim against an Indian company in 2013, after a lengthy investigation. United States v. Infosys Limited, No. 4:13-cv-00634, settlement agreement (E.D. Tex., Oct. 30, 2013). The investigation began when a U.S.-based employee reported evidence of fraud involving H-1B guest worker visas and B-1 business visas to federal authorities. The employee alleges that the company retaliated against him for reporting his suspicions, including demotion, harassment, hostile work environment, termination, and refusal to rehire. His lawsuit, initially filed in New Jersey, claims violations of the whistleblower protection provisions of the False Claims Act (FCA) and the Sarbanes-Oxley Act of 2002. Palmer v. Infosys Limited, No. 3:14-cv-06122, complaint (D.N.J., Oct. 2, 2014), transferred to No. 6:14-cv-00905 (E.D. Tex., Dec. 8, 2014).

The defendant is a technology and consulting business based in Bangalore, India, which provides services to numerous U.S. tech companies. It petitions for temporary work visas on behalf of workers in India. Workers in “specialty occupations” may come to the U.S. on an H-1B visa. To qualify, a worker must have a bachelor’s degree or higher, and he or she must have a job offer from a U.S. employer for a position that requires a degree or certain specialized skills. Federal law limits the number of new H-1B visas to 65,000 per year, so the field is competitive.

The plaintiff attended meetings in Bangalore in March 2010 in which managers allegedly “discussed the need to and ways to ‘creatively’ get around” H-1B program restrictions. Palmer, complaint at 11. He alleges that he was instructed to prepare “welcome letters” for people coming to the U.S. on B-1 visas for short-term business purposes, but that these people were actually coming to the U.S. for jobs requiring an H-1B visa. The plaintiff filed an internal whistleblower complaint with the defendant in October 2010, and he eventually reported the matter to multiple federal agencies and members of Congress.
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teamwork-294584_640.pngA former sales executive obtained a substantial verdict in May 2014 in a lawsuit against Microsoft, which accused the software company and a consultant of employment discrimination, sexual harassment, retaliation, and defamation. Mercieca v. Rummel, et al, No. D-1-GN-11-001030, third am. pet. (Tex. Dist. Ct., Travis Co., Apr. 12, 2013). He alleged a conspiracy to make false allegations of sexual harassment against him, which resulted in a hostile work environment and discriminatory treatment. The company then retaliated against him, eventually constructively terminating him, after he formally complained about the hostile work environment.

The plaintiff worked for Microsoft for 17 years in offices around the world. At the time of the events described in the lawsuit, he was a Senior Sales Executive in the company’s Austin, Texas office. He claimed that he had an excellent reputation within the company and had received multiple awards for sales performance, customer service, and service to the company.

In the fall of 2007, Lori Aulds was named Regional Sales Director, which made her the plaintiff’s direct supervisor. The two of them, according to the plaintiff, had a sexual relationship that ended several years prior to her promotion. She allegedly remarked about her current relationships to the plaintiff and tried to get him involved in disputes with her new significant other, despite his insistence that it made him uncomfortable.
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Torus_Trooper_-_Game_Over.jpgA federal lawsuit accuses a New York business of firing the plaintiff in retaliation for his report of unlawful employment practices. Giraldo v. The Change Group New York, Inc., et al, No. 1:14-cv-00375, complaint (S.D.N.Y., Jan. 21, 2014). The plaintiff, who is a gay man, also alleges that he was subjected to ongoing sexual harassment, discrimination, and a hostile work environment based on sexual orientation. The lawsuit asserts causes of action for retaliation, discrimination, and harassment in violation of federal, state, and city law.

The plaintiff was employed as a sales consultant by a currency exchange group in Manhattan from December 2012 until November 2013. He alleges multiple instances of harassment by two managers in the office, including inappropriate comments about his sexual orientation. One of the managers allegedly displayed similar behavior towards female employees and customers on a regular basis. The plaintiff claimed that he also frequently made “ethnically and racially discriminatory comments towards African American employees,” Muslim employees, and the plaintiff, who is Hispanic of Colombian descent.

In a seemingly-anonymous email sent to company executives just after midnight on October 8, 2013, the plaintiff complained about the two managers’ allegedly widespread discrimination and harassment. He identified multiple specific instances of inappropriate sexual and racial comments directed to the plaintiff, and inappropriate comments and behavior directed at others. He also noted his concern that speaking out publicly would cost him his job, as people who expressed dissenting opinions were often “squashed or treated as heretics” by the managers. He specifically stated that if he attached his name to the email, he believed he would be fired.
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Census_Bureau_map_of_Old_Bridge_Township,_New_Jersey.gifA lawsuit filed in a New Jersey Superior Court against a police department and several police officials seeks over $1 million in damages for alleged race discrimination, sexual harassment, and retaliation. The plaintiff in Cruz v. Old Bridge Police Department, et al alleges that the department ignored her repeated complaints of sexual harassment because of her race, and then subjected her to retaliation and a hostile work environment that prevented her from returning to work. The New Jersey Law Against Discrimination (NJLAD) protects workers from employment discrimination based on factors like race and sex, and includes sexual harassment as a form of gender discrimination.

The plaintiff, according to local news coverage, was hired in May 2004 as an auxiliary police officer for the Old Bridge Police Department. This is a part-time position that works certain events, assisting the police department by providing crowd and traffic control. She alleges that a lieutenant began sexually harassing her shortly after she was divorced by asking her questions and making comments of an inappropriate sexual nature, and with direct sexual advances. She asserts that she asked him to stop and reported the matter to the department’s Internal Affairs unit, but the harassment continued.

When the lieutenant was promoted to captain, he became the plaintiff’s direct supervisor. She claims that he created a hostile work environment by “ostraciz[ing] here” and behaving in a “disrespectful and…demeaning manner.” The department ignored her complaints, she claims, because she is a black Hispanic woman. She received a charge of “conduct unbecoming” that she claims was false, and in September 2011 she was suspended without pay for allegedly submitting false time records in order to increase her pay. She also denies this charge. The department did not fire her, but reportedly also did not set an end date for her suspension. The township listed her employment status as “did not return,” according to the Home News Tribune. She either quit or was terminated by the department in December 2011.
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file841254908663 morguefile username jusben.jpgA federal appeals court has ruled in favor of a construction worker in a sexual harassment lawsuit. In EEOC v. Boh Bros. Construction Co., the nation’s Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of a Louisiana man who claims he was subjected to verbal and physical harassment by a male work supervisor because he does not conform to the man’s gender stereotypes.

The employee was initially hired by Boh Bros. Construction Co. to perform welding and iron repair work on a Louisiana bridge following Hurricane Katrina. He was later transferred to a bridge maintenance crew consisting of about six men and one supervisor. According to the record presented at trial, the supervisor regularly used vulgar language at work. A few months after his transfer, the supervisor began calling the employee names, questioning his masculinity, and performing harassing acts that “embarrassed and humiliated” him.

After the employee complained about the supervisor’s behavior, he was transferred to another work crew. Later, the supervisor learned that the employee violated a company policy and told him to meet with the general supervisor. The employee again complained about the harassment and was sent home without pay. The employee claims there was no discussion of the policy violation. The general supervisor apparently performed a perfunctory investigation of the harassment allegations and determined they were without merit. Two days later, the employee was told to report to work. A few months after he filed a discrimination complaint with the EEOC, he was laid off for lack of work.
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